Lead Litigation Conference 2013

November 14-15, 2013

Pretrial Motion Practice

LEAD PAINT CAUSATIONFOR PLAINTIFFS, PRE-TRIAL

RAYMOND L. MARSHALL, ESQ.

401 WASHINGTON AVENUE, SUITE 1100TOWSON, MARYLAND 21204 RMARSHALL@CRLMLAW.COM

(410) 494-3700

I. IMPORTANT CAUSATION POINTS FOR PLAINTIFFS IN SUMMARY JUDGMENT OR MOTION FOR JUDGMENT

II. AN ARGUMENT TO CONSIDER WHEN CAUSATION IS DIFFICULT TO PROVE

III. MISCELLANEOUS POINT FOR SUMMARY JUDGMENT

I. IMPORTANT CAUSATION POINTS FOR PLAINTIFFS IN SUMMARY JUDGMENT OR MOTION FOR JUDGMENT

1. CAUSATION IS TYPICALLY DECIDED BY A JURY

◦ COLLINS V. LI, 176 MD. APP. 502, 933 A.2D 528 (2007)

2. THE STANDARD IN WHICH THE COURT REVIEWS THE MOTIONS IS FAVORABLE TO A PLAINTIFF

◦ MYERS V. KAYHOE, 301 MD. 188, 892 A.2D 520 (2006)

SUMMARY JUDGMENT OR MOTION FOR JUDGMENT CAUSATION POINTS, CONTINUED

3. THE “SUBSTANTIAL FACTOR” TEST WAS CREATED TO LESSEN, NOT INCREASE, A PLAINTIFF’S BURDEN TO PROVE CAUSATION, AND MARYLAND COURTS CONTINUE TO FOLLOW THIS TEST

◦ BARTHOLOMEE V. CASEY, 103 MD. APP. 34, 651 A.2D 908 (1994)

◦ RESTATEMENT (SECOND) OF TORTS § 431. WHAT CONSTITUTES LEGAL CAUSE

RESTATEMENT (SECOND) OF TORTS § 431. WHAT CONSTITUTES LEGAL CAUSE

THE ACTOR’S NEGLIGENT CONDUCT IS A LEGAL CAUSE OF HARM TO ANOTHER IF:

A) HIS CONDUCT IS A SUBSTANTIAL FACTOR IN BRINGING ABOUT THE HARM; AND

B) THERE IS NO RULE OF LAW RELIEVING THE ACTOR FROM LIABILITY BECAUSE OF

THE MANNER IN WHICH HIS NEGLIGENCE HAS RESULTED IN THE HARM

SUMMARY JUDGMENT OR MOTION FOR JUDGMENT CAUSATION POINTS, CONTINUED

4. THE INITIAL BURDEN OF PROVING CAUSATION IS ON THE PLAINTIFF

◦ RESTATEMENT (SECOND) OF TORTS § 433B(2) “MORE PROBABLY THAN NOT”

BUT THE BURDEN OF APPORTIONING HARM IS ON THE DEFENDANT

◦ RESTATEMENT (SECOND) OF TORTS § 433A

LIABILITY IS IMPOSED EQUALLY WHERE TWO OR MORE CAUSES ARE CULPABLE AND INCAPABLE OF DIVISION

UNLESS DEFENDANT PROVES THAT HARM CAN BE APPORTIONED

II. AN ARGUMENT TO CONSIDER WHEN CAUSATION IS DIFFICULT TO PROVE

1. WHEN A LEAD TEST IS NOT AVAILABLE, ARGUE SPOLIATION

◦ DEFINED

◦ PROOF PRIOR CLAIMS AND LAWSUITS EXISTENCE OF INSURANCE POLICY MARYLAND DEPARTMENT OF THE ENVIRONMENT

REGISTRATION DEFECT, NOT NOTICE

◦ CAUSE OF ACTION

MPJI-CV 1:14 SPOLIATIONThe destruction of or the failure to preserve evidence by a party may give rise to an inference unfavorable to that party. If you find that the intent was to conceal the evidence, the destruction or failure to preserve must be inferred to indicate that the party believes that his or her case is weak and that he or she would not prevail if the evidence was preserved. If you find that the destruction or failure to preserve the evidence was negligent, you may, but are not required to, infer that the evidence, if preserved, would have been unfavorable to that party.

• Residential rental properties built before 1950 are required to be registered annually with MDE

• Exception – a passing Lead Free inspection certificate

III. MISCELLANEOUS POINT FOR SUMMARY JUDGMENT

MD. R. 2-502◦PROCEDURE ◦APPLICATION

CRISE V. MARYLAND GENERAL HOSPITAL, INC., 212 MD. APP. 492, 69 A.3D 536 (2013)

RULE 2-502. SEPARATION OF QUESTIONS FOR DECISION BY COURT

If at any stage of an action a question arises that is within the sole province of the court to decide, whether or not the action is triable by a jury, and if it would be convenient to have the question decided before proceeding further, the court, on motion or on its own initiative, may order that the question be presented for decision in the manner the court deems expedient. In resolving the question, the court may accept facts stipulated by the parties, may find facts after receiving evidence, and may draw inferences from these facts. The proceedings and decisions of the court shall be on the record, and the decisions shall be reviewable upon appeal after entry of an appealable order or judgment.

THANK YOU

RAYMOND L. MARSHALL, ESQ.

401 WASHINGTON AVENUE, SUITE 1100TOWSON, MARYLAND 21204 RMARSHALL@CRLMLAW.COM

(410) 494-3700

Speaker

Raymond MarshallChason Rosner Leary & Marshall LLP

Raymond L. MarshallChason Rosner Leary & Marshall LLC410.494.3709rmarshall@crlmlaw.com

Questions